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Moreno v The King

Moreno v The King

Case [2023] VSCA 98 1 May 2023

Admissibility of Evidence

Criminal Liability

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0027

CARL MORENO (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST AP, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2023
DATE OF JUDGMENT:	1 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 98
JUDGMENT APPEALED FROM:	[2023] VSC 78R (Lasry J)

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CRIMINAL LAW – Leave to appeal – Decision of trial judge not to exclude evidence – Witness identified applicant after conversation with another person and having been shown a Facebook photograph of the applicant – Whether impugned evidence excluded under Evidence Act 2008, s 137 – Probative value of evidence low – Significant risk of unfair prejudice to applicant – Leave to appeal granted – Appeal allowed.

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Counsel
Applicant:		Mr D Dann KC and Ms A Dixon
Respondent:		Mr D Porceddu
Solicitors
Applicant:	Melasecca Kelly & Zayler
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
NIALL JA
KAYE JA:

The applicant is charged with the murder of Adrian Pacione (‘Pacione’), and with aggravated burglary, arising from a single incident in Lalor on 18 July 2020. On the same indictment, the applicant is also charged with attempted armed robbery, which is alleged to have occurred on 23 June 2020 at Roxburgh Park.
On the evening of 18 July 2020, Pacione was sitting on a chair watching television at the home of his friend Christian Rubini, a unit in Ella Court, Lalor. Also present were Lorenzo Tigani (‘Tigani’) and Christian Rubini’s father Mario. Christian Rubini had sold drugs from his home and, from time to time, people came there to buy drugs. At the entry to the unit was a wooden front door and a security door.
At around 10:38 pm the occupants heard a knocking at the door and Christian Rubini opened it, leaving the security door closed. He saw several people including a man, face partly covered, holding a gun. As those outside sought to enter the unit, Christian Rubini struggled to close the door and Tigani ran to the door to assist him. A number of shots were fired through a glass window pane next to the door. One of the bullets penetrated Pacione’s skull and, later that evening, he died from the wound.
Arising from the incident, the applicant, Abdullah Hammoud (‘Hammoud’), Tahmid Rahman (‘Rahman’) and Ammair Fahal (‘Fahal’) were charged with aggravated burglary; and the applicant was also charged with murder. Rahman and Fahal have pleaded guilty to their respective charges and await a sentencing hearing.
It is necessary to introduce at this point the Roxburgh Park incident. Tigani, together with Dimitros Pramatias (‘Pramatias’) (who is also known as ‘Taki’) were the victims of the alleged attempted armed robbery. In brief, Pramatias and Tigani were attempting to purchase cannabis from two men, one of whom pulled…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moreno v The King

Details

AGLC: Moreno (a pseundonym) v The King [2023] VSCA 98
Case: [2023] VSCA 98
Decision Date: 1 May 2023

CaseChat Overview and Summary

The case of Moreno v The King involved the applicant, Moreno, appealing against the decision of the trial judge not to exclude evidence obtained from a witness. The evidence in question was given by a witness who identified Moreno as the person who had committed a crime. This identification occurred after the witness had a conversation with another person and was shown a photograph of Moreno on Facebook. The issue before the court was whether the evidence obtained by the witness was inadmissible under section 137 of the Evidence Act 2008, given its low probative value and the significant risk of unfair prejudice to the applicant. The court had to consider whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice to the applicant. The court found that the evidence did not have a high probative value and that there was a significant risk of unfair prejudice to the applicant. The court concluded that the trial judge erred in not excluding the evidence and granted leave to appeal. The appeal was subsequently allowed.

The court considered the principles set out in cases such as Papakosmas v The Queen and R v SZBJV, which emphasised the importance of the probative value of evidence and the risk of unfair prejudice. The court found that the evidence in this case did not have a high probative value, and the significant risk of unfair prejudice to the applicant outweighed any probative value. The court found that the trial judge's decision not to exclude the evidence was an error of law. The court also noted that the witness's identification of the applicant was influenced by the conversation with another person and the Facebook photograph, which further reduced the reliability of the evidence. The court concluded that the evidence should have been excluded, and the trial judge's decision not to do so was an error of law.

Orders